Presented by: NC State University Office of General Counsel 2011 Faculty Review/Grievance Panel Workshop

What is the 604/607 Committee? A University Standing Committee charged with: Hearing requests for reviews of non-reappointment decisions (UNC Code Section 604) Hearing other employment-related grievances (UNC Code Section 607) Carrying out the duties set forth in the Faculty Grievance and Non-Reappointment Review Policy (POL )

Who are the members of the Committee? This years 604/607 Committee is comprised of former members of what used to be known as the Grievance Panel. **Process for selection of 604/607 Committee members will change in the academic year

What are the sub-committees of the Committee? Review Panel – will hear 604 reviews Grievance Panel – will hear 607 grievances Panel = 3 members and 1 non-voting chair Selected by the Chair of the 604/607 Committee when a petition for review or grievance is filed **Attorney from OGC available to advise the Panel

What are responsibilities of members of the Review or Grievance Panel? Be familiar with NC State POL Fair and impartial hearing panel Follow due process Determine if matter is appropriate for review/grievable Collect/hear the evidence Make findings of fact/recommendations to Chancellor Establish official record Maintain confidentiality Seek advice from OGC on procedural issues or questions relating to legal standards

What are the duties of the Chair of a 604 Review Committee or a 607 Grievance Committee? Be familiar with NC State POL Be a presider not decider Oversee all meetings and proceedings Ensure due process Make procedural decisions with advice from OGC attorney assigned to the Committee Write final report with findings/recommendations Compile official record and transmit to Chancellor

What is the authority of the Panel? To make a recommendation to the Chancellor. The panel has no power to reverse an administrative decision, but can only recommend a reassessment of that decision if it finds that the decision was reached improperly.

Fair and impartial hearing panel No conflicts of interest No actual or perceived bias of panel member(s) toward any party No ex parte communications

What is a conflict of interest? A relationship to a party or particular knowledge of the grievance that would prevent a person from deciding the case solely on the basis of the evidence presented at the hearing uninfluenced by matters of personal interest or other factors Examples – 1) your best friend is a key witness in the case 2) the outcome in the case may affect you personally 3) the petitioner/grievant is a departmental colleague 4) you have first-hand knowledge of the facts in dispute

What is a conflict of interest? A relationship to a party or particular knowledge of the grievance that would prevent a person from deciding the case solely on the basis of the evidence presented at the hearing uninfluenced by matters of personal interest or other factors Examples – 1) your best friend is a key witness in the case 2) the outcome in the case may affect you personally 3) the petitioner/grievant is a departmental colleague 4) you have first-hand knowledge of the facts in dispute

What should a Panel member do if a conflict of interest exists? Determine whether the panel member is able to render a decision unaffected by whatever knowledge they possess or relationship they have with the party or both parties – can the panel member make a fair, objective decision based solely on the facts, evidence and arguments made during the hearing? If the panel member cannot objectively decide the case, he/she should disqualify him/herself Provide the parties an opportunity to object to the panel members participation after disclosing the conflict

Can a panel member be automatically disqualified due to a conflict of interest? Yes. When a grievant names the dean or the department head as respondents, a faculty member who is a member of the petitioner or grievants College (when the dean is named as a respondent) or department (when department head is named as respondent) may not serve on the Panel. Yes. A faculty member who participated in the review decision may not serve on the Panel.

Can either of the parties challenge the participation of a panel member? Yes. Each party may request, in writing, that a prospective member be removed for cause.

What is due process? Opportunity for matter to be heard fairly and impartially Opportunity for parties to present evidence and question witnesses Panel makes recommendation to Chancellor based only on the evidence presented at the hearing

What is a Section 604 Review? Procedure by which tenure track faculty member may seek review of a non-reappointment decision Limited to non-reappointment decisions May only be filed by tenure-track faculty members

What are the grounds for requesting a Section 604 review? Material procedural irregularity Violation of rights guaranteed by the First Amendment to the US Constitution/Article I of NC Constitution (freedom of religion, speech and association) Discrimination (race, color, sex, religion, creed, national origin, age, disability, genetic information, veterans status, or other discriminatory bases prohibited under UNC or BOT policies) Personal malice

Who is the respondent in a Section 604 petition? The Provost is a respondent in all reviews of non- reappointment decisions A dean/department head can be named as a co- respondent if he/she materially contributed to the violation of rights alleged in the petition No one else can be named as a respondent unless all parties agree

What is a Section 607 grievance? Procedure by which a faculty member of any rank may seek redress concerning employment-related decisions Grievance can be filed for post-tenure review decisions

What can be the basis for a Section 607 (general) grievance? Decision by a university administrator that allegedly violates a law, university policy, regulation or rule or commonly shared understandings within the academic community about the rights, privileges and responsibilities attending university employment Faculty member adversely (negatively) affected in his/her professional or academic capacity

What can be the basis for a Section 607 (Post-Tenure Review) Grievance? Same as grounds for a Section 604 review -Material procedural irregularity - Violation of rights guaranteed by the First Amendment to the US Constitution/Article I of NC Constitution -Discrimination (see above) -Personal Malice

Can a faculty member grieve any employment-related matter? No; a faculty member may not grieve the following: 1) dissatisfaction with application of PRR on the basis that it is unfair or inadvisable 2) non-renewal/non-extension of contract upon expiration of contract (non-tenure track faculty) 3) complaints, grievances or appeals subject to another university procedure or within jurisdiction of another committee 4) claims for compensatory/punitive damages that can be filed with the NC Industrial Commission (tort claim, workers compensation claim)

What is the purpose of a Section 604 review? To determine if the non-reappointment decision resulted from an impermissible ground/reason or a material procedural irregularity What is the purpose of a Section 607 grievance? To determine whether the grievant has been adversely affected by an administrative decision that violates his/her employment rights

Review or Grievance Procedures Formation of Review Panel or Grievance Panel Initial Meeting Pre-hearing Meeting Hearing Closed Session Record Compiled Decision and Record sent to Chancellor

Initial Meeting Review NC State POL and companion procedures Determine whether petition or grievance is appropriate for review (jurisdiction) Set potential dates for pre-hearing meeting (if applicable)

Pre-Hearing Meeting Review hearing procedures with the parties Set aside date(s) for hearing Identify observers Set date for exchange of witness lists and proposed exhibits Other housekeeping matters

Hearing Chair – opening remarks Opening statements by parties Presentation of evidence by petitioner/grievant Dismissal after presentation if burden not met Presentation of evidence by respondent(s) Closing Statements

Closed Session Chair facilitates discussion Burden of Proof on Petitioner/Grievant Discussion of facts as they relate to each key issue Resolution of conflicting evidence Deciding the ultimate issue Findings of Fact/Recommendation to Chancellor

Panel Report Introduction - describing the process followed by the Panel Brief Description of the review/grievance and the parties to the review/grievance Findings of Fact and Conclusions (basis for conclusions, how facts support conclusions, resolution of conflicting evidence) Recommendations Use report template

Official Record Important for all levels of review! Petition or grievance statement and response All correspondence sent by the Chair, the parties or committee members that pertains to the petition/grievance (includes ) All exhibits presented to the Panel by either party Court reporters transcript Panels written report

Miscellaneous Issues Confidentiality of Grievance Proceedings Admissible evidence; hearsay evidence Affidavits from absent witnesses Failure of a party to exchange documents or witness lists Failure of a party to appear Personnel file access Role of Legal Counsel Requests to amend the petition/grievance Remedies Withdrawal of grievance or settlement – effect Separate report to the Chancellor

Questions? Office of General Counsel